Reeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.

As Americans celebrated the 242nd anniversary of their secession from Great Britain, references to the Declaration of Independence ratified on July 4, 1776 were many. But while the left reminded us “all men are created equal” and the right reminded us that all inalienable rights come from our Creator, far too little attention was paid to another phrase in Jefferson’s famous preamble: “deriving their just powers from the consent of the governed.” Judging from the way most Americans talk, almost no one remembers how that consent is supposedly obtained.

Hint: It isn’t from voting in elections, but that’s what most Americans seem to believe. According to this narrative, representatives are elected democratically, and by casting one’s vote, one consents to whatever legislation the representatives who win the election choose to pass, or whatever executive actions the elected president chooses to take. In the aftermath of Obamacare’s passage, surrogates for President Obama often justified that new federal endeavor with the quip, “That’s why we have elections.” Conservatives employ the same reasoning when their candidates win.

That raises the question: Why did the framers bother with Sections 8, 9 and 10 in Article I, Sections 2, 3 and 4 in Article II, or Sections 2 and 3 of Article III? Why did they include Article V at all?

The answer is that the aforementioned sections define the list of powers the people were consenting to, all others being reserved to the states or the people, while Article V was provided as the one and only means for the people to consent to any new powers. Put another way, any power exercised by the federal government that is not among those delegated in the Constitution is power exercised without the consent of the governed.

One of the dumber debates in recent history has broken out in the wake of Justice Antonin Scalia’s passing. Senate Majority Leader Mitch McConnell has suggested that President Obama shouldn’t nominate a replacement for Justice Scalia because Obama is in the last year of his final term.

Opponents, including the president himself, have responded that the Senate has a constitutional duty to bring Obama’s appointments to a vote and to confirm one, if qualified.

Both sides are completely wrong. The President has the legitimate authority to nominate a successor on every day of his presidency, up to and including the very last day. That precedent was set by no less than the second president of the United States. As Elizabeth Warren astutely observed,

Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.

But neither can be found the words “shall bring to an up or down vote” or anything to the effect that the Senate is required to take action on the President’s nominees. The Constitution was deliberately constructed so that inaction would be the starting point in all matters. The reason for the separation of powers was to ensure that things didn’t get done efficiently within the federal government, because efficient government is a threat to liberty.

TAMPA, March 26, 2013 – No satire could approach reality when it comes to the federal government. While its two “polar opposite” political parties continue their standoff over whether the federal budget should increase $2.5 trillion or $2.4 trillion over the next ten years, its supposedly apolitical arm will begin deliberating over who is allowed to get married.

After that, they will take up the question of which end of the egg Americans may break.

Only a full century of government mayhem could have led to this. The court will consider two laws that together make up such a tangled mess that it’s fitting that the body that found Obamacare to be “a tax” should be assigned to sort it out.

The Defense of Marriage Act (DOMA) is the federal law that stipulates that no state is required to recognize a same sex marriage from another state. It also defines marriage as being between a man and a woman for all “federal purposes,” meaning any benefits normally paid to spouses in a federal retirement or entitlement program.

DOMA itself is a quagmire. Proponents of federalism have read the interstate portion as a protection of states’ rights, but is it? If this is an area that is beyond the power of the federal government, then why does Congress have to pass a law to say so? Why are they allowed to pass such a law at all?

TAMPA, July 16, 2012 – Since this is a presidential election year, everyone is focused on the White House. As usual, this election is being hyped as some sort of crossroads in American history: The American electorate will either choose to make an irreversible turn down the road to socialism or conservatives will save the country by electing a Republican president who will restore the American principles of free enterprise and individual responsibility.

It all makes a pretty good story until one attempts to back it up with tangible evidence: Why is Barack Obama a “socialist?” Why is Mitt Romney different?

The first answer you’d get on Obama from most conservatives is Obamacare. That was virtually the single issue for most Tea Party rallies in 2010. Yet Republicans are going to nominate the former governor who pioneered the same program in Massachusetts. If Obamacare makes the president a socialist, then why doesn’t Romneycare make his opponent one also?

Romney answered that question throughout the Republican nomination debates by taking a states rights position. He had signed a healthcare program into law in Massachusetts that was good for that state, but president Obama had been wrong to impose it upon the whole country.

Why the program is socialist when the federal government imposes it nationally but not when the state government imposes it on its millions of citizens is unclear.

However, that point is moot given other facts that came to light following the Supreme Court’s decision to uphold Obamacare. It turns out that despite repeatedly stating that Obama was wrong to impose the healthcare program on the whole nation, Romney actually told Obama to do exactly that just three years ago.

TAMPA, June 1, 2012 – Everyone has their version of the founding fathers and the U.S. Constitution. The most common is that the British colonies rebelled against their king because of “taxation without representation” and formed an independent republic. Their first try at a government didn’t work, so the best and the brightest among them met in Philadelphia and devised a new one. United in their desire to “form a more perfect union,” the delegates placed their trust in the “father of the Constitution,” James Madison, who masterfully wove “checks and balances” into a document that codified the limited government principles he would fight for the rest of his life.

That’s a nice, sentimental story, but the real one is far more interesting. If you want to know what really happened, then pick up a copy of James Madison and the Making of America by Kevin R. C. Gutzman.

Meticulously researched using primary and secondary sources, Gutzman’s book covers most of Madison’s life, concentrating on his key role in bringing about the constitutional convention and subsequent ratification of the Constitution itself. Gutzman follows the Philadelphia Convention almost day by day, managing to keep the story downright riveting without resorting to the “historical novel” format popular in recent decades. While doing so, he blows up just about every myth about Madison, his colleagues and the Constitution.

For at least a month, the media have been ignoring compelling evidence that Ron Paul is doing much better in the Republican nomination race than he did in the primary/caucus popular votes. In their hurry to write the general election narrative, the media have forgotten to perform their primary function: to report the facts. The facts are that Ron Paul has won at least two states and will likely win more.

Now that Paul’s success is impossible to ignore, the media are writing a new narrative. Headlines like “Ron Paul’s stealth state convention takeover” and “Ron Paul People Playing Mischief with Delegates” indicate that instead of ignoring Paul’s victories, they now seek to imply that there is something sneaky or unfair about them. Some even suggest that his delegate success in states where he did not win the popular vote may even (gasp!) “undermine democracy.”

Undermining democracy would be a good thing. If there is anything we have too much of in 21st century America; it’s democracy. The United States flourished as a free and prosperous society largely because it was founded as a republic. The reason for the bicameral legislature, the separation of powers, and the other so-called “checks and balances” was to protect us fromdemocracy, which James Madison called “the most vile form of government.”

Based upon the belief that government “even in its best state, is but a necessary evil,” the American republic was built to check the will of the majority whenever it wished to confer more power on the government. That’s why there are two houses in Congress. In a democracy, there would be only one. Even after the House passes a law, it then has to pass the Senate, which originally represented the state governments, not the people. The 17th Amendment removed this important check on the power of the federal government.

TAMPA, April 4, 2011 – Despite the drama created by the two days of oral arguments on Obamacare, I’m sticking to my original prediction that the controversial law will be upheld by the Supreme Court.

Let’s face it, if the Court upheld a law limiting the amount of crops that someone can grow on their own land for their own consumption, they’ll find a way to uphold this. Ricardo Alonso-Zaldivar of the Associated Press (AP) provides some of the possible reasoning that the Court may rely on.

The AP article points out that there are many other federal government healthcare mandates already in place. Medicare is an individual mandate. There is no option to “opt out.” Conservatives make the distinction that one is only taxed for Medicare if one has an income, while Obamacare forces you to buy a product just because you’re alive. That distinction is valid, but how what does it really mean?

If you choose not to have an income then you either starve to death or live off previously taxed income. Those living off savings and investments haven’t escaped the mandate. Those assets were acquired by previous income. If you’re living off public welfare, then the tax has simply been paid by somebody else. “Income” is necessary to human life. One cannot consume what one has not produced unless someone else produces it for you. Thus, you either comply with the Medicare mandate or die.

Lost in all of these minutiae is a core principle. Government itself is an individual mandate. You have no choice whether to purchase its services. You have no choice whether to obey its laws or pay its taxes. You either comply or you are dragged away by force or killed while resisting. Americans used to understand this.